1
IN THE HIGH COURT FOR THE STATE OF TELANGANA,
HYDERABAD
****
W.P.No.6256 of 2021 W.P.No.20221 of 2016 W.P.No.42258 of 2016 W.P.No.7628 of 2017 W.P.No.11411 of 2017 Between:
W.P.No.6256 of 2021 Fishermen Cooperative Society, Bakshi Begumpet & Ors.
Petitioners VERSUS State of Telangana and Others.
Respondents W.P.No.20221 of 2016 Fishermen Coop. Society Thummalagudem Village, rep by its President.
Petitioner VERSUS State of Telangana and Others.
Respondents W.P.No.42258 of 2016 Fishermen Coop. Society, Duppally Village Petitioner VERSUS State of Telangana and Others.
Respondents W.P.No.7628 of 2017 The Fisherman Coop. Society Ltd, Jaikesaram Village.
Petitioner VERSUS State of Telangana and Others.
Respondents W.P.No.11411 of 2017 Fishermen Coop. Society Ltd, Revanapalli Bhoodhan.
Petitioner VERSUS State of Telangana and Others.
Respondents JUDGMENT PRONOUNCED ON: 30.7.2021 THE HON'BLE SRI JUSTICE T.AMARNATH GOUD
1. Whether Reporters of Local newspapers may be allowed to see the Judgments? : Yes
2. Whether the copies of judgment may be Marked to Law Reporters/Journals? : Yes
3. Whether His Lordship wishes to see the fair copy of the Judgment? : No _________________________ T.AMARNATH GOUD, J 2 * THE HON'BLE SRI JUSTICE T. AMRNATH GOUD + W.P.No.6256 of 2021 W.P.No.20221 of 2016 W.P.No.42258 of 2016 W.P.No.7628 of 2017 W.P.No.11411 of 2017 % 30.7.2021 # Between:
W.P.No.6256 of 2021 Fishermen Cooperative Society, Bakshi Begumpet & Ors.
Petitioners VERSUS State of Telangana and Others.
Respondents W.P.No.20221 of 2016 Fishermen Coop. Society Thummalagudem Village, rep by its President.
Petitioner VERSUS State of Telangana and Others.
Respondents W.P.No.42258 of 2016 Fishermen Coop. Society, Duppally Village Petitioner VERSUS State of Telangana and Others.
Respondents W.P.No.7628 of 2017 The Fisherman Coop. Society Ltd, Jaikesaram Village.
Petitioner VERSUS State of Telangana and Others.
Respondents W.P.No.11411 of 2017 Fishermen Coop. Society Ltd, Revanapalli Bhoodhan.
Petitioner VERSUS State of Telangana and Others.
Respondents ! Counsel for Petitioner : Ms. M Vidyavathi ^ Counsel for the respondents : Government Pleader for Fisheries <GIST:
> HEAD NOTE:
? Cases referred 1 AIR 1980 SC 379 2 (1985) 1 SCC 641 3 AIR 1990 SC 1277 4 AIR 1997 SC 3387 5 (2002) 2 SCC 333 6 (2006) 4 SCC 517 7 2002 SCC OnLine Andhra Pradesh 661 3 THE HON'BLE JUSTICE T.AMARNATH GOUD W.P.No.6256 of 2021 W.P.No.20221 of 2016 W.P.No.42258 of 2016 W.P.No.7628 of 2017 W.P.No.11411 of 2017 COMMON ORDER:
1 Challenge in all these Writ Petitions is to the G.O.Ms.No.6 dated 24.3.2016 issued by the first respondent-Animal Husbandry and Dairy Development and Fisheries Department of the State of Telangana.
2 Since the grievance of the petitioners in all the Writ Petitions, more or less, is one and the same, they are being disposed of by this common order. For the sake of convenience, I refer to the facts of the case as pleaded in W.P.No.6256 of 2021. 3 The case of the petitioners is that all the petitioners are fishermen cooperative societies and they are solely depending on fishing operations to eke out their livelihood. All the tanks of the respective societies are rain fed tanks and no perennial water supply to the tanks. Thus the tanks are rain fed and not long seasonal water spread area. All the petitioner societies are under the supervision and control of the Department of Fisheries and are governed under the provisions of the Telangana State Cooperative Societies Act, 1964. The second respondent issued a Circular Memo No.26130/1(1)/83, dated 23.12.1983 specifying the viability norms for each member. As per the said Circular, One Hectare (2.47 acres) of long seasonal water spread area is taken as a viable unit to a member of a Cooperative Society. While so, the first respondent, ignoring the prevailing facts and circumstances, has 4 issued G.O.Ms.No.6 dated 24.3.2016 fixing the viability norms as Ac.1-00 water spread area to each member in case of perennial / canal fed water sources and Ac.2-00 water spread area to each member in case of all other water sources. The first respondent constituted a Five-Men committee to determine the viability norms for organization / bifurcation / enrollment of new members of Fishermen Cooperative Societies in the State of Telangana. The said Five-Men committee said to have examined the matter in respect of existing norms in Memo No.26129/1(1)/83, dated 23.12.1983 and submitted a report that due to construction of various projects under Jalayagnam and Mission Kakatiya, every water body has changed its seasonality and potentiality and adopting to do management practices by the fishermen and the productivity of all water sources also to be increased into many folds. It is also submitted to uphold the circular instructions and to set aside the G.O.No.6.
4 It is further submitted that the report of the Five-Men Committee which is the basis for issuance of G.O.Ms.No.6 dated 24.3.2016 is unscientific and hypothetical, virtually affects the rights of fishermen in catching the fish and to eke out their livelihood. The respondent authorities ought to have considered the per capita index of the income of the member of the society before re-fixing the viability norms wherein the respondents have glaringly failed to consider the same simply relying upon the unscientific and vague report submitted by the Five-Men Committee.
55 It is further submitted that the sixth respondent issued a notice dated 20.02.2021 to the first petitioner directing to pass a resolution regarding admission of Mudiraj Community Fishermen as members of the Society. Similarly all the District Fisheries Officers are insisting the other petitioner societies to admit new members without any viability and feasibility. 6 The petitioners attack the impugned G.O. on the following grounds, viz., 1) The G.O. was issued without giving any notice to the petitioners and thereby it is violation of principles of natural justice, 2) The G.O. is placing reliance on the report of a Five-Men Committee consisting of Assistant Directors of Fisheries and they are not technical persons and scientific recommendations have not been proved, 3) Persons from other communities whether eligible or ineligible are interfering with the fishermen societies or forming new fishermen societies due to which economic viability of the existing members and the fishermen societies are at stake. Hence the Writ Petitions.
7 The case of the official respondents, as per the counter affidavits, is that there was no viability norms for fixing the total number of members enrolled into a society till 1983. For the first time, for deciding the viability of Inland Fishermen Cooperative Societies, adhoc norms have been framed vide Commissioner of Fisheries Memo No.26130/I(1)83 dated 23.12.1983. In order to sort out disputes arose among the stake holders with regard to membership and total number of members to be enrolled in each society, the same rules have been followed without any exception till orders issued in G.O.Ms.No.74 AH, DD & F department dated 6 21.10.2011 and G.O.Ms.No.06 AH, D & F Department, dated 24.3.2016. It is further submitted that because of construction of various projects under Jalayajnam and emergence of new techniques in the field of fish farming the potential of the water bodies tremendously increased by many folds giving lot of scope for admission of more number of members by revising the norms of the viability.
8 It is further submitted that the Government of Telangana have revived most of the irrigation tanks under Mission Kakatiya resulting to increase in water spread area and water retention period. All the above activities paved the way for increasing in fish productivity of water sources. It is further submitted that issuance of the G.O. by the Government is correct. The Five-Men Committee conducted proper exercise having gone to the gross root level by finding out the economic viability. They have calculated and considered the cost factor of the seed, harvesting and the amount of income which the fishermen would get and due to the Kaleswaram project, Mission Kakatiya and all other projects the water level and the feasibility of conducting fishing rights has improved and the economic viability when compared to the earlier position is now in better position. So the Government has considered all the aspects in the light of the welfare measures of the fishermen and issued the present G.O. 9 It is further submitted that there are about 3900 fishermen societies in the State of Telangana. But only handful societies are regularly filing Writ Petitions before this Hon'ble Court under one pretext or the other and have taken a lead to challenge the 7 impugned G.O. There cannot be any monopoly in trade. The Government has taken a policy decision and issued the impugned G.O and there cannot be any challenge to the said policy unless it is proved otherwise and malafides established or violation of any constitutional right. The members of the Five-Men Committee, which has recommended for issuance of the impugned G.O, are all Assistant Directors of Fisheries and they are competent enough to issue the recommendations since they are ground level officers and that they are the officers who initiate the registration of societies and also providing membership to the eligible fishermen and also conduct skill test. Hence prayed to dismiss the Writ Petitions and uphold the impugned G.O. No.6.
10 Heard the learned counsel for the petitioners in all the Writ Petitions and the learned Advocate General for the respondent authorities.
11 The learned counsel for the petitioners submitted that the report of the Five Men Committee is hypothetical as there is no scientific data to arrive at such a conclusion. As per the Memo dated 23.12.1983, 40% of the net profit is earmarked under various heads and hence the impugned G.O.is unsustainable. She further submitted that Mission Kakatiya works are not completed in majority of the tanks upto 100% including the tanks of the petitioners. Moreover, Mission Kakatiya is not source of water for fishing. The report of the Five-Men Committee virtually affects the rights of the fishermen in catching the fish and to eke out their livelihood, which is part of welfare legislation. She further submitted that as per Section 19 of the T.C.S. Act 1964, the power 8 to admit new members vest with the General Body of the Society which is the ultimate authority under the Act subject to byelaws of the society. Viable unit for each member has to be considered for admission of members into the society. Apart from viability norms, for admission of new members, natural calamities such as drought, floods etc have to be taken into account for determining the income of the society. The water spread area shown at the time of registration of the society in the byelaws is not the sole criteria even to admit members, the General Body of the Society has to pass a resolution in cooperative spirit for providing livelihood to all the members of the society taking into consideration the income derived in each year from the water sources allocated in the area of operation. The learned counsel for the petitioners further submitted that the petitioners are doing fishing operations through their society and providing membership to new members or forming new societies would make the petitioner societies unviable and if the stand of the Government in reducing the area of operation in respect of each member for fishing rights from Ac.2.5 to Ac.1.00, basing on the recommendations of the Five-Men Committee, is not set aside, the petitioners would be put to irreparable loss and injury and hence prayed to set aside the impugned G.O.
12 Per contra, the learned Advocate General submitted that there cannot be a monopoly in trade and the impugned G.O was issued basing on the policy of the Government and the policy of the Government cannot be challenged unless any malafides are pointed out or any constitutional violation is pointed out. The Assistant Directors of Fisheries are competent persons and that 9 they are ground level officers to form a new society, provide membership and also to check the feasibility of fishing rights. The learned Advocate General relied on the following decisions:
1. Tamil Nadu Education Department, Ministerial and General Sub Ordinate Services Association Vs. State of Tamil Nadu1,
2. Indian Express Newspapers (Bombay) Pvt. Ltd Vs. Union of India2,
3. Shri Sita Ram Sugar Co. Ltd. Vs. Unioni of India3,
4. Union of India Vs. Ganayutham4,
5. Balco Employees Union Vs. Union of India5,
6. State of Tamil Nadu Vs. P. Krishnamurthy6, and
7. D. Srinivasa Raju Vs. District Forest Officer7.
13 The case of the unofficial respondents is that as they are eligible persons to become either members of the fishermen cooperative society or to form a new society, the impugned G.O. has to be upheld.
14 Admittedly, the first respondent being a welfare State has to cater to the needs of all persons who are similarly placed and need to maintain equality and there cannot be discrimination. In a lawful trade which is recognized by the statute, there cannot be monopoly. The impugned G.O. is nothing but a policy which is framed by the Government to accommodate more and more fishermen to eke out their livelihood keeping the economic viability 1 AIR 1980 SC 379 2 (1985) 1 SCC 641 3 AIR 1990 SC 1277 4 AIR 1997 SC 3387 5 (2002) 2 SCC 333 6 (2006) 4 SCC 517 7 2002 SCC OnLine Andhra Pradesh 661 10 in mind. Neither in the affidavit filed in support of the Writ Petition nor during the course of arguments, the petitioners have pointed out any malice in issuing the impugned G.O by the respondent Government. The only point which came for consideration during the course of argument by the learned counsel for the petitioners is that the impugned G.O was issued in pursuance of the recommendations made by the Five-Men Committee and that the members of the so called Five-Men Committee are all Assistant Directors of Fisheries and that they are not eligible to issue such recommendations. This argument cannot be appreciated since the Government is the competent authority which knows the competence of the officers in the State and accordingly it has nominated the Five-Men Committee. The said persons have done sufficient exercise and have given an exhaustive report keeping in mind the procurement of seed, investment on fish and the harvest and finally the income a fisherman would get. While deciding the said factor, it was also considered with regard to the water / tanks in which the fishing operations are carried out. When it is a policy decision and the Government is issuing a G.O, question of violation of principles of natural justice does not arise as the rights of the petitioners are not infringed. It is only accommodating more members of similarly placed in the society by way of providing them membership as per the viability norms and the petitioners cannot find fault with in inviting their brethren into their society. In weaker sections of the society it is expected that the existing members must know the difficulties of their brethren and they are expected to give a warm welcome to the eligible persons and get along with cordial 11 relationship in the cooperative movement. The Circular instructions issued in the year 1983 cannot have an overriding effect on G.O.No.6 which is having statutory force of law. 15 In P. Krishnamurthy case (6 supra) the Hon'ble apex Court held as under:
15. There is a presumption in favour of constitutionality or validity of a sub-ordinate Legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognized that a sub-ordinate legislation can be challenged under any of the following grounds :-
a) Lack of legislative competence to make the sub-ordinate legislation.
b) Violation of Fundamental Rights guaranteed under the Constitution of India.
c) Violation of any provision of the Constitution of India.
d) Failure to conform to the Statute under which it is made or exceeding the limits of authority conferred by the enabling Act.
e) Repugnancy to the laws of the land, that is, any enactment .
f) Manifest arbitrariness/unreasonableness (to an extent where court might well say that Legislature never intended to give authority to make such Rules).
16 In the case on hand, since no malice is pointed out in the policy of the Government and no infringement of constitutional right is also pointed out, this Court finds that the impugned G.O is valid and is legal.
17 In Balco Employees' Union case (5 supra) the Hon'ble apex Court held as follows:
In Narmada Bachao Andolan vs. Union of India and Others, (2000) 10 SSC 664, there was a challenge to the validity of the establishment of a large dam. It was held by the majority at page 762 as follows :-
"229. It is now well settled that the Courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision. Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy-making process and the Courts are ill-equipped to adjudicate on a policy decision so undertaken. The Court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people's fundamental rights are not transgressed upon except to the extent permissible under the Constitution."
It is evident from the above that it is neither within the domain of the Courts nor the scope of the judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are our Courts inclined to strike down a 12 policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical.
18 The above principle was reiterated in D.Srinivasa Raju case (7 supra).
19 In view of the above reasoning and having regard to the principle enunciated in the cases cited supra, this Court is of the considered opinion that the contentions of the petitioners fail and accordingly all the Writ Petitions are liable to be dismissed and the G.O.Ms.No.6 AH, D & Department dated 24.3.2016 is upheld. 20 In the result, all the Writ Petitions are dismissed. No order as to costs. Miscellaneous petitions, if any, pending in the Writ Petitions shall also stand dismissed.
__________________________ T. AMARNATH GOUD, J.
Date: 30.7.2021 L.R. copy be marked B/o Kvsn